Tuesday, October 2, 2007

The Tainted Blood Saga Slowly Ends

Madam Justice Benotto yesterday acquitted the accused in the criminal trials brought in respect of Canada's tainted blood scandal. The essence of the charge was simple: these men and companies allowed contaminated blood products that infected seven children into the system after safe and effective means existed both to screen and purify blood products. So why were they acquitted?

As of today only press accounts of Justice Benotto's reasons available but the reasons appear to be what many expected and, in fact, are likely what they should be.

First, of course, the accused did not have the benefit of hindsight. After the fact it is easy to recognize that there was a clear public health crisis being caused by the blood system and also that the new mechanisms that had been introduced on the market were effective and safe methods of dealing with this crisis. At the time there were undoubtedly any number of considerations given the novelty of the techniques, including, did they in fact work?

This last question is not as easy as it looks. Remember that the blood system was providing products that were always in desperately short supply given the need. The tainted blood problem could have been solved instantly by turning off the tap -- stop all deliveries of blood products until a foolproof method of screening or cleaning was devised. Of course the result of this would be to kill hundreds if not thousands of people immediately rather than condemn some of them to the slow lingering miserable death that HIV and Hep-C cause. The same type problem arises if the new test causes too high a rate of false positives. Similarly, how should the decision makers of the day have dealt with the new heat treatment techniques given that they were yet untested in any serious way -- how would everyone have felt if they had undermined the effectiveness of the blood supply or introduced a new problem?

It is a bedrock principle of law, particularly criminal law, that we judge people on the circumstances they were in -- that is based upon their knowledge of the facts at the time and the state of society (that is science, the law, public mores etc.) at the time.

Second, another aspect of the case also likely turns on the question of isolating responsibility in a large system. Decisions in a large system are made on the basis of a large number of inputs from a large number of people. The outcome of a decision making process therefore is hard to isolate as being the responsibility of one single person or even a small group of people within an organization. This of course is distinct from deviant actions such as the decision to steal from the company. Here what were attacked were decisions at the core of the operations of the Red Cross -- how to run the blood system. These decisions arise out of input from scientists and staff about the severity of the problem, the range of available solutions, the risks and benefits associated with those solutions, the evolution of the problem and the solutions, the costs of the solutions, the consquences of acting or not acting. The significance of each of these in turn depends upon things that are beyond the control of particular decision makers -- for example the size of the overall budget and the size of the overall blood supply were externally determined.

This runs then to a second bedrock principle of criminal law -- we only hold people criminally responsible for their personal acts, not for the acts of others. The civil law is different in this regard.

Third, there is the practical problem of proof and doubt. In a criminal case a person must only be convicted if proof has been made out against them beyond a reasonable doubt. If the trier of fact (in this case the judge) is left with a reasonable doubt about any component of the crime -- for example that there was the requisite intention to cause harm or to act recklessly -- the accused must be acquitted. This is true even if the trier of fact actually believes the person 'did it' or is even guilty. This standard is set so high because the criminal law is about punishment of individuals for their actions. We have other systems in our society to help the victims that are not so onerous: the civil jusice system which doles out compensation only requires 'proof on a balance of probablities' (that is 50%+1) while medical care system provides treatment without proof of any wrongdoing.

In the end it seems unsatisfying that there is no villian who can be condemned and drawn to prison to the jeers of the innocent victims and an angry public. But personally I think in this case this is the right result -- the tainted blood catastrophe was a public health catastrophe. While it would be a relief to most of us to be able to say 'it was not us,' the reality is that it was a combination of pubklic attitudes, a lack of urgency on the part of the government and the public and a myriad a systemic problems that led to a disasterous outcome and we all have a hand in it (well assuming we were alive at the time). We should be let of the hook by being able to blame things on a cabal of villians working in a boardroom somewhere.

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